MUKESH GOPALJI PARMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present appellant -orig.convict(hereinafter referred to as 'the appellant') has filed the present appeal under Section 374 read with Section 386 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction and sentence dated 27th June 1989, passed by the learned Special Judge, Ahmedabad City in Special Case No.11 of 1988, whereby the learned trial Judge at the conclusion of the trial vide judgment and order under challenge has held the appellant guilty for the said offences and sentenced him to undergo rigorous imprisonment for two years and a fine of Rs.1000/ -, in default to undergo further rigorous imprisonment of six months for the offence punishable under Section 161 of the Indian Penal Code and also sentenced him to undergo rigorous imprisonment for two years and a fine of Rs.1000/ - and in default to suffer further rigorous imprisonment for six months for the offence punishable under Section 5(1)(d) read with 5(2) of the Act. Both the sentences were ordered to be run concurrently.

(2.) THE judgment and order of conviction and sentence under challenge in this appeal is assailed by the appellant on various grounds as mentioned in paragraph no.3 of the memo of the appeal. Shri Sudhir Mehta, learned counsel appearing for the appellant, has taken me through all the grounds of challenge and also the judgment and order of conviction and sentence under challenge. By analysing the facts placed by the prosecution and evidence led during the course of trial, it is submitted by Shri Sudhir Mehta that the finding recorded by the learned trial Judge is mainly based on conjectures and surmises and it was required to be held by the learned trial Judge that as the complainant and all other residents of Lalbhai Fakirbhai Chawl were inclined to get rid of the entire assessment process initiated by the appellant, the complainant decided to implicate the appellant in such a serious offence. There was no demand of bribe amount by the appellant on 25th February, 1987 or any time thereafter as alleged by the prosecution. There is no convincing evidence as to demand of bribe amount. The complainant has not supported the case of the prosecution and, therefore, he was treated hostile by the prosecution by way of order below application Ex.13. The learned trial Judge ought not to have linked the appellant with the crime on the sole testimony of panch and the panchnama tendered in evidence. The evidence of the raiding officer ought not to have any weightage as he was the trap witness. The learned trial Judge committed a grave error in seeking corroboration from the evidence of raiding party officer and accepting the evidence of the panch witness.

(3.) MS .D.S. Pandit, learned Additional Public Prosecutor, has submitted that the reasons assigned by the learned trial Judge for linking the appellant with the crime are cogent. The learned trial Judge has categorically held that the defence theory of planting the amount of bribe forcibly in the pocket of the appellant, was not found acceptable. It is true that the prosecution should prove its case beyond reasonable doubt and it cannot rely on the weakness of the defence. But in the present case, according to Ms.Pandit, the Court should evaluate the evidence in the background of the statement of the appellant recorded under Section 313 of the Code of Criminal Procedure, 1973. The evidence of panch witness has been accepted because the scientific data collected with the help of ultraviolet lamp corroborates the version and evidence of the trap witness ACB (Anti Corruption Bureau) Police Inspector should not be discarded. The accepted proposition of law is that the evidence of the trap witness like the complainant and the trapping officer should be scanned closely. This is not a case of any material contradiction or improvement in the version of the basic story. Though the complainant has not supported the case of the prosecution, some part of his evidence clearly helps the prosecution. Part of hostile witness can be read, if it is useful to either party. In the present case, the acceptance of amount of bribe has been clearly supported by the case of the prosecution, the finding recorded by the learned trial Judge cannot be said to be illegal, erroneous or in any way perverse or contrary to law.